Bail reform slow to move forward

ALBANY — With Democrats in control of state government, the end of cash bail in New York appears inevitable. The final legislative discussions, observers say, will likely be over how much leeway prosecutors will have in advocating for keeping some defendants in jail.

The District Attorneys Association of New York endorsed a report Tuesday that recommended the state end cash bail for defendants in most misdemeanor and some nonviolent felony cases, and that they be released on their own recognizance.

Under the task force's proposal, defendants charged with crimes that carry life sentences or certain nonviolent felonies that carry mandatory prison terms — or conspiracy to commit any of those offenses — would not receive presumptive release.

The task force’s recommendations differ slightly from proposals made by Gov. Andrew Cuomo, the Assembly and the Senate on the scope of crimes that would qualify for that release.

In addition to removing cash bail in some cases, the report from the New York State Justice Task Force also recommended that prosecutors be given the opportunity to argue against presumptive release if they believed the defendant posed a threat to individuals or groups.

Negotiations will come down to balancing how the state protects victims, such as those in domestic violence cases, and the desire to make a significant change in the number of people in county jails who have not been convicted of a crime.

Albany County District Attorney David Soares said Wednesday that the district attorneys’ association, which he currently leads, believes there needs to be a carve-out in some cases, such as those involving exploitation or predatory sexual behavior, in which prosecutors can argue against releasing defendants without bail.

“We don’t believe that a person who is charged with a non-violent crime … should suffer the collateral consequences that people have with the current bail system,” Soares said. “We believe if the Legislature takes a look at the quality and classes of cases we’ve identified, allowing district attorneys to make that argument is what a fair and balanced system looks like.”

Nick Encalada-Malinowski, the civil rights campaigns director at VOCAL-NY, criticized the district attorneys’ group, saying they had been lobbying to kill the bill and other criminal justice reform measures.

“Every day we don’t pass this, more people are going to jail who shouldn’t,” Encalada-Malinowski said. “We seen broad public support for these bills.”

Soares said the association had raised what it saw as logical concerns with bail reform, including concerns over victim safety and how it will impact rural counties.

“What we’re articulating is not resistance to the reform, we’re articulating the regional differences and how whatever legislation we pass should be able to be implemented regardless of your ZIP code,” he said.

The district attorneys’ association endorsed the state task force’s other recommendations, which include additional training for judges and funding for pretrial services.

Pretrial services, or how the court ensures defendants return for their next court date, have been another sticking issue in bail reform legislations. Advocates fear that courts and prosecutors will rely heavily on restrictive methods like ankle monitors.

Soares said pretrial services could range from measures such as letters and texts to electronic monitoring. There is also debate on which crimes will qualify for any level of supervision.

Soares warned that without a state investment in additional infrastructure to support bail reform, the reforms might not as effective as intended.

“Any time the legislature can pass legislation under the guise of reform without investing a penny, they’re going to do that,” he said. “You can call it reform, but if there’s no check coming in to the counties to ensure that overall goal of the reform is realized … then you really haven’t changed people’s circumstances.”